Life is unpredictable, especially if you have children and you’re divorced or separated. You or your ex may find unexpected personal and financial opportunities in new places, but that doesn’t mean you can just pack up your kids and move. If you or your ex want to move away with your children, you’ll have to reach an agreement or else submit your case to the Indiana family courts.
If a parent with custodial rights wants to move away with the children, that parent must secure the agreement of the other parent or else prepare a notice of intent to relocate and provide it to the other parent. The notice has to be sent via registered or certified mail to each non-relocating parent and has to be furnished no later than 90 days before the date of the intended move. A proper notice must contain:
In certain cases—for example, if there’s been a history of family abuse or violence—the court may decide that disclosing this information will create a significant risk of substantial harm to the relocating parent or child. If that happens, the court may order:
The non-relocating parent has to respond to this notice by filing a motion no later than 60 days after receiving the notice. The motion has to state that the non-locating parent objects to the move. If the non-relocating parent doesn’t file this motion, the relocating parent has automatic permission to move.
When the motion is filed, either parent can request a full evidentiary hearing (which is like a trial, with testimony and evidence presented to the presiding judge) to consider whether the relocation request should be granted.
If the situation is more urgent, the court can issue a temporary order until a final decision about the relocation can be made. The judge can temporarily prevent the move if:
By contrast, the judge can temporarily allow a move if:
At the evidentiary hearing, the parent who wants to move has to prove two things:
If the relocating parent proves both of these elements to the court’s satisfaction, the burden of proof shifts to the non-relocating parent to establish that the proposed relocation isn’t in the child’s best interests. The child’s best interests are always paramount to any custody decision.
To decide whether a move is in the child’s best interests, the court must consider all of the following:
“Other factors” include:
If a move isn’t in a child’s best interests, the court won’t allow it. The parent who opposes the relocation has to present evidence about how the proposed move will affect each best interest factor.
Each parent can call witnesses and submit evidence to the court and each parent can cross-examine the other side’s witnesses and criticize the other parent’s evidence. After the hearing, the judge will issue an order allowing or blocking the move.
In one recent Indiana case, the Indiana Court of Appeals took up the question of whether a relocating parent proved that she had a good faith basis for moving and a legitimate reason for taking the child with her. The mother testified that she wanted to move from Indiana to Texas because she thought it would improve her financial situation—however, the mother admitted that she would earn the same salary in Texas and she had no real connections there. Based on this, the Court of Appeals ruled that she wasn’t entitled to move with her child.
The facts were slightly different in another case that the Court of Appeals heard around the same time. In this case, the mother wanted to move to South Carolina for both economic and personal reasons. She had a close connection to the South Carolina in that she had secured employment there and the majority of her extended family lived there. Therefore, the court ruled that her decision to move was made in good faith and that she had legitimate reasons to want to take her son with her. However, when the court moved to the question of whether the move to South Carolina was in the child’s best interests, it concluded that the relocation would hurt her son because it greatly disrupted his established routine and friendships, because his father couldn’t afford regular visitation even with financial assistance from the mother, and because the child wanted to live with his father.
If you have custody or visitation rights and you want to move out of Indiana with your children, or if your ex has custody or visitation rights and wants to take your children away against your wishes, you should contact an experienced Indiana family law attorney for help.